Chapter 5: Federal and State Regulators and Enforcement of Privacy Law
Unfair Trade Practices
An unfair practice causes or is likely to cause substantial injury that is not reasonably avoidable by consumers and not outweighed by countervailing benefits. Unfairness needs no deceptive statement - see Equifax and the criminal-prosecution-first Uber case.
The three-part unfairness test
A unfair practice (1) causes or is likely to cause substantial injury (not merely speculative); (2) not reasonably avoidable by consumers; and (3) not outweighed by countervailing benefits to consumers or competition. No deceptive statement is required - inadequate security or disclosures can be unfair on their own.
| Case | Year | Key point |
|---|---|---|
| In the Matter of Equifax | 2019 | 2017 breach hit ~150M consumers; settlement with FTC, CFPB, and 50 states/territories; $300M consumer fund, $175M to states, $100M civil penalty to CFPB; 20-year comprehensive security program |
| In the Matter of Uber | 2018 | Two breaches (2014, 2016); concealed the 2016 breach and paid a ransom; first time a company executive faced criminal prosecution over a breach - the security chief was convicted in 2022 of obstructing an FTC investigation and concealing a felony |
Key terms - quick answers
What is “Unfair practice”?
A practice that causes or is likely to cause substantial, non-speculative consumer injury that is not reasonably avoidable and not outweighed by countervailing benefits to consumers or competition.